COMMISSIONER OF C EX , PANCHKULA Vs. MALCOM PHARMACEUTICALS

JUDGEMENT

(1.) This appeal filed by the revenue under Section 35G of the Central Excise Act, 1944 (hereinafter referred to as the Act') has been directed against the order dated 11-2-2005 passed by the Customs, Excise and Service Tax Appellate Tribunal, New Delhi (hereinafter referred to as the CESTAT') whereby the Appeal No. E/4241/0-4-NB (SM) filed by the respondent-assessee, has been allowed and the order dated 31-5-2004, passed by the Commissioner (Appeals), Central Excise, Faridabad, has been set aside.

(2.) In this appeal, the following substantial question of law has been raised by learned counsel for the appellant for consideration of this Court :

(3.) The respondent-assessee is a company engaged in the manufacture of medicines falling under Chapter Heading 30.03 of the Schedule to the Central Excise Tariff Act, 1985. On 14-3-2002, its factory premises was visited by the officers of the Central Excise Division, Ambala. At that time, it was noticed that the assessee was withdrawing/removing controlled samples of each batch of medicine without payment of central excise duty leviable thereon. It was also noticed that the assessee had not accounted those samples in its daily stock account register. Thereupon, the assessee was asked to furnish the detail of the control samples withdrawn by it from January, 1997 onwards. In response thereto, the assessee submitted detail of the control samples withdrawn by it during the period from September 1997 to January 2002. The total value of the control samples was Rs. 39,883/- involving Central Excise Duty of Rs. 2,022/-. When the assessee was pointed out the non-payment of the said duty, it deposited the said amount along with interest in March, 2002. Thereafter, a show cause notice was issued to the assessee for confirmation of the Central Excise Duty amounting to Rs. 2,022/- already paid and appropriated under Section 11A of the Act by invoking the proviso of extended time limit; interest on the demand amount, already paid under Section 11AB; for imposing personal penalty on the partner of the assessee under Rule 209A of the erstwhile Central Excise Rules, 1944 and Rule 26 of the erstwhile Central Excise (No. 2) .... read with Section 38A of the Act.